No En Banc Rehearing|of Deepwater Liability

NEW ORLEANS – After finding BP and Anadarko liable in the 2010 Deepwater Horizon explosion and oil spill, the 5th Circuit declined to hold an en banc rehearing. The 7-6 vote means the companies will face a trial to determine how much they owe in Clean Water Act penalties for the April 20, 2010, disaster that killed 11 workers and dumped millions of barrels of crude oil into the Gulf of Mexico. A three-judge panel had looked at the case after U.S. District Judge Carl Barbier found BP and Anadarko responsible for pollution fines in 2012. Under the Clean Water Act, the companies are facing fines of “up to $25,000 per day of violation or an amount up to $1,000 per barrel of oil” spilled. The companies had attempted to sway the 5th Circuit with arguments in June that their facilities did not actually discharge the oil since it entered the Gulf of Mexico from Transocean’s broken riser. Transocean owned Deepwater Horizon, the rig that drilled the well, as well as the riser that connected the well to the rig. They also pointed out that the blowout preventer should have stopped the oil from flowing. After affirming the order against the oil companies in November, they denied a rehearing en banc last week. Judge Edith Brown Clement wrote in dissent that a rehearing would have allowed “more faithful interpretations of the Act.” “Further, the panel’s issuance of a supplemental opinion to clarify its first CWA interpretation suggests that the panel perceived an ambiguity in the CWA,” she wrote, joined by the other dissenting judges. “This is concerning because a clear line of precedent exists holding that ambiguities in civil-penalty statues should be resolved in favor of the defendant.” Clement concluded by saying the district courts will now be left “to harmonize the discord.” “We should have seized the opportunity now.”